Make a Difference

Distinguished members of the Commission – thank you for the
opportunity to testify today on behalf of the American Civil Liberties Union
regarding the Fourth Amendment, due process and civil rights implications
related to the Bush Administration’s Terrorist Surveillance Program (TSP). The
ACLU is a nonpartisan, nongovernmental organization with hundreds of thousands
of members and supporters, and 53 affiliates nationwide.

According to media reports, in 2002 President Bush signed a
secret order authorizing the National Security Agency (NSA) to monitor overseas
e-mails, telephone calls and other communications – originating within the
United States – of hundreds, and perhaps thousands, of U.S. citizens and foreign
nationals without first obtaining warrants.[1] The administration subsequently admitted
that such warrantless surveillance was occurring and it dubbed it the “Terrorist
Surveillance Program.” The ACLU
believes this program is illegal and unconstitutional and a federal court
agrees. We compliment the Commission for holding this briefing to shed
additional light on the program, and on the intelligence surveillance that
continues today.

It is clear to us that the NSA warrantless spying program
violated the Fourth Amendment of the Constitution and federal law. The Fourth
Amendment bars unreasonable searches and seizures and requires court approval
for such activity except in an emergency. As a diverse group of legal
experts—including Judge William Sessions, the former Director of the FBI under
President Ronald Reagan—concluded after analyzing all the constitutional and
statutory assertions of the administration: “the Justice Department’s defense of
what it concedes was secret and warrantless electronic surveillance of persons
within the United States fails to identify any plausible legal authority for
such surveillance.”[2]

The U.S. Supreme Court has long held that the conversations
of Americans in the U.S. cannot be seized under the Fourth Amendment without
court oversight.[3] In a case
involving warrantless wiretapping by the Nixon Administration in the name of
national security, the Court stressed that “Fourth Amendment freedoms cannot
properly be guaranteed if domestic surveillance may be conducted solely within
the discretion of the Executive Branch.”[4] In that case, the
Keith case, the Court reaffirmed that “prior judicial approval is required for
the type of domestic surveillance involved in this case and that such approval
may be made in accordance with such reasonable standards as Congress may
prescribe.”[5]

In the aftermath of Watergate, the United States Senate
Select Committee to Study Governmental Operations with Respect to Intelligence
Activities (otherwise known as the Church Committee) found that the NSA had
unconstitutionally monitored every single international telegram sent or
received by American residents or businesses, amounting to millions of
telegrams.[6] At that time,
Congress determined that through the NSA's warrantless surveillance programs,
the NSA alone had created specific files on approximately 75,000 United States
citizens, and eavesdropped on journalists, Members of Congress and their
spouses, and other government officials. Congress found that the NSA had also
created a watch list of Americans who were suspected of foreign influence merely
because they opposed a foreign war – including ordinary Americans who belonged
to the Quaker church, as well as celebrities such as Joan Baez and Dr. Benjamin
Spock.[7] The Church
Committee found that in the absence of any judicial check, the executive branch
had spied on government employees, journalists, anti-war activists and others
for political purposes.

In response in part to the findings of the Church Committee,
Congress passed the comprehensive Foreign Intelligence Surveillance Act (FISA)
to provide the “exclusive” authority for the wiretapping of US persons in
investigations to protect national security.[8] As the Senate
Report noted, FISA “was designed . . . to curb the practice by which the
Executive Branch may conduct warrantless electronic surveillance on its own
unilateral determination that national security justifies it.”[9] Under FISA,
federal agents are required to get court approval in order to monitor the
communications of any person in the United States. FISA does permit the
surveillance of people in the country linked to national security threats, but
only with a court order. FISA provides that no one may engage in electronic
surveillance “except as authorized by statute,” and it specifies civil and
criminal penalties for electronic surveillance undertaken without statutory
authority.

By failing to follow the exclusive provisions of FISA and
Title III governing wiretaps of Americans, the warrantless NSA wiretapping
program violated both the Fourth Amendment and the letter and spirit of the
federal law passed to protect and vindicate privacy rights.

Without court oversight, one cannot be sure that innocent
people’s everyday communications are not monitored or catalogued by the NSA or
other agencies. During the Cold War, the list of people considered by McCarthy
to be “communists” was long and it was wrong in many notable instances. In the
1960s, J. Edgar Hoover secretly wiretapped the communications of the leader of
the civil rights movement, the Reverend Dr. Martin Luther King Jr., under the
guise of national security. And President Nixon personally approved wiretaps of
cabinet members, government employees, journalists and other Americans he didn’t
like or didn’t trust. These and other revelations led to the passage of FISA to
protect Americans’ Fourth Amendment right to privacy in their conversations by
requiring judicial oversight of all US wiretaps including those in the name of
national security.

Unfortunately, the government has a lengthy track record post
9-11 track record of pursuing ineffective anti-terrorist dragnets that intrude
on innocent Americans’ rights. Examples include certain airline passenger
identity screening programs and the now-outlawed Total Information Awareness
data-mining program. Other examples include disclosures that FBI or Defense
Department agents are spying on Quakers and other pacifists, environmentalists,
and vegetarians, the opening of Americans’ mail without a warrant, and
revelations that the Pentagon and CIA are using “National Security Letters”
without oversight or judicial approval to collect the financial records of
Americans – all in the name of national security. Without a judicial
check, the powerful electronic surveillance tools of the NSA can be trained on
anyone.

The administration has repeatedly stated that the president
is “mindful” of Americans’ civil liberties, but our system of government
requires checks on power, not deference to those in power. The administration
also claims that the Authorization for the Use of Military Force (AUMF) passed
by Congress on September 18, 2001 authorized the warrantless NSA surveillance
program. Yet there is no evidence that Congress intended to override FISA in
passing the AUMF.

In fact, within 40 days of the vote on the AUMF, Congress
enacted 25 changes to FISA at the request of President Bush in the USA PATRIOT
Act (Title II, including Section 215 relating to getting court approval for
business or library records as well as Section 206 regarding getting court
approval for multiple-point wiretaps), but none of these amendments struck the
requirement that the president get judicial approval to conduct electronic
surveillance of people in the U.S. Congress has made other changes to FISA in
the past four years.[10] This legislative
history only serves to reinforce the continuing legal obligation of the
administration to follow FISA regardless of the AUMF.

ACLU Legal Action

On January 17, 2006, the ACLU filed a lawsuit in Michigan on
behalf of prominent journalists, scholars, attorneys, and national nonprofit
organizations whose work requires them to communicate by telephone and e-mail
with people outside the United States, including people in the Middle East and
Asia.[11] Because of the
nature of their calls and e-mails, and the identities and locations of those
with whom they communicate, the plaintiffs have a well-founded belief that the
NSA is intercepting their communications. The NSA program is disrupting the
ability of these groups and individuals to talk with sources, locate witnesses,
conduct scholarship and engage in advocacy.

By seriously compromising the free speech and privacy rights
of the plaintiffs and all Americans, the ACLU charges that the NSA program
violates the First and Fourth Amendments of the United States Constitution. The
program authorizes the NSA to intercept the private communications of people who
the government has no reason to believe have committed, or are planning to
commit, any crime without first obtaining a warrant or prior judicial approval.
The ACLU also charges that the program violates the constitutional principle of
separation of powers because President Bush authorized it in excess of his
Executive authority and contrary to limits imposed by Congress.

The government responded to the lawsuit by arguing that the
case should be dismissed under the state secrets privilege, meaning the program
was so secret and so sensitive that not even a federal court could review what
was happening and whether it violated the law.

On August 17, 2006, U.S. District Court Judge Anna Diggs
Taylor refused to dismiss the challenge to the wiretapping program under the
state secrets privilege. She ruled the NSA program violates the First Amendment,
the Fourth Amendment, and the Foreign Intelligence Surveillance Act. “It was
never the intent of the Framers to give the President such unfettered control,”
Taylor wrote in the decision, “particularly where his actions blatantly
disregard the parameters clearly enumerated in the Bill of Rights.”[12] The government
appealed that ruling.

The appeals were heard on January 31, 2007, before Judges
Alice Batchelder, Ronald Gilman and Julia Gibbons of the United States Court of
Appeals for the Sixth Circuit Court.[13] A decision is
pending.

Telecommunications Companies and the NSA

In May 2006, USA Today revealed that since shortly after 9/11
at least two major phone companies - AT&T and Verizon - have been
voluntarily granting the NSA direct, mass access to their customers' calling
records, and that the NSA had compiled a giant database of those records.
Subsequently confirmed by 19 lawmakers, this program extends to all Americans,
not just those suspected of terrorist or criminal activity.

According to media reports, the goal of this program is to
“create a database of every call ever made” within the nation’s borders.[14] This information
can easily be linked to determine a person’s identity, friends and
interests.

The unauthorized sharing of phone records is illegal under
both state and federal law. As with
the NSA's program of wiretapping on Americans' conversations and e-mail, the
president has evoked the threat of terrorism and used a convoluted
interpretation of presidential power to ignore the law. That means the NSA is operating outside
the law - and without independent review by Congress or outside regulators.

In an effort to expose the depth of the NSA’s unlawful
wiretapping, the ACLU has filed complaints with the Public Utility Commissions
(PUCs) in 24 states to trigger investigations into whether AT&T and/or
Verizon have provided the NSA with their customers' phone records. Without
revealing secret information, utility commissions have the power and the legal
obligation to learn what the phone companies are doing with their customers’
private information and whether they are being upfront with their customers
about those practices.

In Maine, Connecticut, Vermont and Missouri the government
filed federal lawsuits to prevent the PUCs from investigating the program. The
government also filed a separate lawsuit in New Jersey to stop subpoenas about
the program. The phone companies, in conjunction with the federal government,
have moved to consolidate and transfer all of the cases to California. More than
40 cases posing challenges to telephone companies’ use of consumer data in
compliance with the NSA’s program have already been consolidated in California,
including the Maine lawsuit. The ACLU of Illinois and the ACLU of Northern
California originally brought two of the cases.

Additionally, the Maine Public Utilities Commission had
initiated contempt proceedings against Verizon Maine for failure to comply with
an August 9 order by the Commission. The order required a Verizon official to
swear under oath to the truth of previous statements issued by the company
stating it did not give customer records to the NSA. In February the US District
Court of Maine, sighting national security concerns, ruled that the Maine PUC
cannot compel Verizon to disclose whether the telephone company participated in
the warrantless domestic surveillance program.

Claims the New Surveillance Program Now Complies with FISA

In January 2007, the Bush administration announced that it
had abandoned its warrantless wiretapping program in favor of a new program it
did not describe that is subject to FISA court approval. Unfortunately the
administration is still claiming the President has the “inherent authority” to
engage in warrantless eavesdropping[15], and nothing
would stop the administration from resuming warrantless surveillance at any
time. But it is clear that the inherent powers of the president do not include
the ability to conduct a warrantless, indefinite and unlimited domestic
surveillance campaign that is expressly prohibited by law.

The process used to get the new program approved by a FISA
court judge created a number of questions that need to be answered. For example,
why did it take two years to get the approval of just one of the fifteen FISA
judges? Were other judges approached to approve the program? What kind of “innovative arrangement” was used to
obtain approval? And to what extent
will the government release information to the public that will help legal
scholars ascertain whether the order complies with the requirements of
FISA?

It is not yet clear as to whether the government is now
getting individualized warrants based on individual suspicion, or “program
warrants” that do not require individualized suspicion of wrongdoing. Both FISA
and the Fourth Amendment require warrants be based on individual suspicion. The
Bush administration has strongly advocated for legislation that would allow the
use of program warrants, and the Justice Department has said it came up with an
“innovative arrangement” to get the program approved. But there are questions as
to whether this process used will survive legal and constitutional scrutiny. We
have yet to see other than conclusive documents from the administration
describing the new program and how it complies with federal law and the
Constitution.

Program warrants (also known as general warrants) were one of
the reasons Americans fought the Revolutionary War and are specifically
prohibited by the framers of the Constitution in the Fourth Amendment. Certainly
no one could suggestion that our nation’s founders would approve of program
warrants.

With a program warrant, agents are more likely to eavesdrop
on conversations that do not involve a person legitimately targeted for
surveillance. In other words, the net they cast is unconstitutionally wide. The
purpose of the Fourth Amendment is to focus any investigative intrusion on the
wrongdoer. Yet program warrants raise the possibility of an unfocussed intrusion
on many people, possibly affecting countless individuals who have done nothing
wrong and are not agents of foreign powers.

Furthermore, the administration’s claim that the new program
now complies with FISA does not pardon those responsible for five years of
lawless surveillance. In fact, this assertion raises serious questions as to why
the government had not complied with FISA in the first place.

Conclusion

The ACLU believes that both privacy and security can be
successfully pursued and that privacy need not be sacrificed for security. We
believe that both need to be maximized. For almost 30 years FISA has been
successfully protecting both privacy and security.

The Fourth Amendment was specifically enshrined in the
Constitution to prevent the type of warrantless surveillance the President and
the NSA have engaged in, and current law requires that judicially approved
wiretaps under Title III or FISA provide the “exclusive” authority for
wiretapping Americans in this country. FISA is a criminal statute. When
warrantless wiretapping outside of FISA was conducted, a crime was committed.[16] One way to
protect civil rights of Americans and ensure that this type of illegal and
unconstitutional behavior does not happen again is to hold accountable those
responsible for five years of lawbreaking.

The administrations’ lack of disclosure about both the
warrantless surveillance program and the new program has been one of the most
troubling aspects of this process. Clearly, full oversight and transparency are
needed to ensure that the new domestic surveillance program is addressing civil
rights and due process concerns. The documents that justify the program should
be made available consistent with national security needs, and independent
Constitutional scholars should scrutinize them.

It is evident that the government has gathered information
illegally, but has not disclosed whether, or how, it will minimize the damage
that has been done. This means that audits will also be required to make certain
that illegally gathered information is not being used – including all
information gathered through the warrantless surveillance program.

We commend the Commission for holding this briefing. As part
of its oversight function and statutory duty to appraise the Federal
government’s administration of justice, we ask that Commission conduct formal
hearings into the program and that the Commission recommend that Congress do the
same.

In holding additional hearings on this matter, we would ask
that the Commission, if necessary, use its authority to issue subpoenas and
interrogatories to the appropriate government agencies in order to shed much
needed light onto the government’s actions. At the conclusion of its
investigation, we are hopeful the Commission will recommend in any forthcoming
report that Congress find out how many Americans have had their privacy violated
through the surveillance programs, what has been done with the information
collected and how it is being used.

The Commission should also recommend that Congress
investigate the administration's claims that the program now operates under the
supervision of the FISA Court, and that the administration is upholding the
letter and spirit of the law. Congress must find out
who is responsible for the decision to break the law and hold them
accountable. And in that respect, the Commission should recommend that
Congress consider how best to ensure that this and future presidents stay within
the bounds of the Constitution. It is critical that lawmakers uphold their
responsibility to the Constitution and the American people and conduct a
thorough inquiry.

Endnotes

[1] http://http://www.washingtonpost.com/wp-dyn/content/article/2005/12/16/AR2005121600021.html. [2] /safefree/nsaspying/24071leg20060109.html. [3] Katz v. United
States, 389 U.S. 347 (1967).[4] United States
v. United States District Court, 407 U.S. 297 (1972). [5] Id. at 324. Of course, the Keith case is not
directly in point because the NSA’s warrantless surveillance involves
interception of conversations between a person in the U.S. and a person abroad,
as opposed to wholly domestic conversations. [6] “Intelligence
Activities and the Rights of Americans,” Final Report of the Select Committee to
Study Governmental Operations with Respect to Intelligence Activities, United
States Senate, Book III (National Security Surveillance Affecting Americans). [7] James Bamford,
“Big Brother Is Listening,” the Atlantic Monthly, pp. 65-70, April
2006.[8] 18 U.S.C. §
2511(2)(f).[9] S. Rep. No.
95-604(I), at 7, 1978 U.S.C.C.A.N. 3904, 3908.[10] Pub. L. No.
107-56, 115 Stat. 272 (2001).[11] The clients in
the case include the American Civil Liberties Union; the Council on
American-Islamic Relations (CAIR); the National Association of Criminal Defense
Lawyers; Greenpeace; James Bamford, author; Larry Diamond, senior fellow at the
Hoover Institution; Christopher Hitchens, author and reporter; and Tara
McKelvey, senior editor at The American Prospect. [12] /files/pdfs/safefree/nsamemo.opinion.judge.taylor.081706.pdf. [13] The ACLU was
supported by a number of organizations who filed an amicus brief, including the
National Association for the Advancement of Colored People, the American-Arab
Anti-Discrimination Committee, the Asian American Legal Defense and Education
Fund, Japanese Americans Citizens League, and the League of United Latin
American Citizens, among others.
[Chris: please check whether
they filed amicus “briefs” or “an amicus brief” in which they all joined and
modify if necessary.][14] http://www.usatoday.com/news/washington/2006-05-10-nsa_x.htm. [15] http://www.pbs.org/newshour/bb/law/jan-june07/gonzales_01-19.html. [16] 18 U.S.C. §
2511(2)(f); see also 50 U.S.C. § 1809 (making it a crime to wiretap Americans
without a court order under the guise of national security or other
rationales)